Lead lawyer for the respondents in the elections petitions brought by the main opposition New Democratic Party, Senior Counsel Anthony Astaphan, on Tuesday, apologised to Prime Minister Ralph Gonsalves after the court of appeal ordered that the petitions be reinstated.
The NDP is challenging the result of the Dec. 9, 2015 general elections in Central Leeward and North Windward, but Justice Brian Cottle, last June, threw out the cases as improperly before the court.
But the court of Appeal, on Tuesday, overruled Cottle’s decision, saying that he showed apparent bias in his handling of the matter.
The Court of Appeal further ruled that the hearing of the petitions and motions to strike be remitted to the High Court to be heard by a different judge, as soon as possible.
On Tuesday evening, Astaphan called the Unity Labour Party’s radio station, Star FM, on which Gonsalves made an appearance after the court verdict was announced.
“I’m really sorry that we didn’t do better than that,” Astaphan told Gonsalves.
“We tried, but we are back down to the motions again and we are going to continue to do our best to make sure–” he said but was cut off by Gonsalves.
Gonsalves, who is also a lawyer, however, told Astaphan that he has been in the law court long enough, and has followed the cases for more than 30 years to know that the unexpected sometimes happens.
“… occasionally, something come from the left field like, for instance, an application which gives people who don’t have a hand a temporary lease of life, a temporary lift,” he said.
The prime minister said that notwithstanding Tuesday’s developments in the case, the parties still have to come back to “the fundamental question” of whether the petitions are properly before the court.
“And the answer is that they are not properly before the court,” Gonsalves said, adding that Justice Cottle has made this pronouncement twice.
“I have read the judgments. I have read the cases and I am satisfied in my mind that the preparation that you all did in arguing twice before Cottle, and I am quite sure the same arguments would have been refined in front of the Court of Appeal, had those issues been canvassed — but they raise what is to the case itself a marginal question. When you have another judge, another judge has to deal with what the law is and what the facts are.”
He said the fact is that there is not before the court in accordance with the rule, a proper security for cost…”
Astaphan, however, said that he just wanted to call and indicate to Gonsalves on air “that we tried, we are disappointed with the results…”
“I understand what we have to do now. We have to take a frontal approach to the matter and take it to the court and let the court make the decision. Because, you are quite right, this was a legal argument, this was not a question of making findings of fact and it would be extraordinary indeed if a different judge comes to a different conclusion to what Cottle came twice, because the law is clear,” Astaphan said.
Astaphan further said that “there were concessions made during the hearing that are going to loom large at any trial or any hearing of the motion to strike”.
Gonsalves said he is “not at all worried” that the respondents will prevail.
“I am absolutely unperturbed. I’m not worried, whatsoever. You, as a lawyer, you are in the case, you are just surprised that the court would accept this notion of bias. And my approach to that, they accept it, they may be right, they may be wrong. I can live with that.”
The NDP’s candidates in Central Leeward and North Windward, Ben Exeter and Lauron Baptiste have filed petitions asking the court to declare them winners in those constituencies or order fresh elections there.
Electoral officials say Sir Louis Straker and Montgomery Daniel of the ULP won those seats.
Gonsalves said that what he knows is fundamental is that when the court comes back to hear the motion to strike out the petition of Exeter and Baptiste, that Straker and Daniel have “a very strong case” and naturally, too, the Supervisor of Elections and the Attorney General.
“I am not in the slightest way perturbed,” he said.
Electoral officials say that the ULP won the 2015 elections and a fourth consecutive term in office by taking eight of the 15 parliamentary seats, while the remaining seven went to the ULP.